Property Division During Divorce

Division of property, also known as equitable distribution, is a judicial division of property rights and obligations between spouses during divorce. It may be done by agreement, through a property settlement, or by judicial decree. Distribution of property is the division, due to a death or the dissolution of a marriage, of property which was owned by the deceased, or acquired during the course of the marriage.

In Ferguson v. Ferguson, 639 So.2d 921 (Miss. 1994),[1] the court described equitable distribution of marital property at divorce as more fair, or equitable, than the separate property system. The court may consider such factors as “substantial contribution to the accumulation of the property, the market and emotional value of the assets, tax and other economic consequences of the distribution, the parties’ needs, and any other factor relevant to an equitable outcome.” Fairness is the prevailing guideline the court will use. Alimony payments, child support obligations and all other property will be considered. Even non-tangible contributions such as a spouse’s domestic contributions to the household will be taken into account, whether that spouse has anything titled in their name or not. A spouse who has made non-tangible contributions may claim an equitable interest in the marital property at divorce.

The Uniform Marriage and Divorce Act §307 (UMDA §307)[2] also allows for the equitable distribution of property and lists factors the court should consider, e.g. “the duration of the marriage, and prior marriage of either party, antenuptial agreement of the parties [which is the same as a prenuptial agreement or premarital agreement], the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties, custodials provisions…” etc. Marital misconduct is not a factor in the decision-making process.

Another form of property distribution at divorce is called “community property distribution”.

Equitable distribution is not the same as equal distribution. For example, in a family with a stay-at-home mother, the husband’s share may be less than 50 percent as compensation to the wife for having to return to the work force at a lower wage scale.

Generally speaking, in a divorce, the assets and liabilities (debt) acquired or generated during the marriage are equally divided among you and your spouse. Assets include your home, and its furnishings; retirement accounts, such as pension plans and 401K accounts; stock accounts, and family businesses. In some cases, you may be entitled to a greater (unequal) share of the assets. Scott Levine is experienced in addressing the complex issues associated with equitable distribution, including the valuation of assets such as family owned businesses, and he will work hard to see that the issues involved in your equitable distribution are resolved in a fair and proper manner.